Maybe the calculation is simply that the Supreme Court would be more likely to act on this advice than to overturn the appeals court’s decision.

However, consider what would happen if the Supreme Court were to rule that greenhouse gas regulation is a political question. Industry would no longer face the threat of interminable litigation, from a potentially limitless pool of plaintiffs, in which multiple courts, acting without benefit of statutory guidance, improvise remedies — both injunctive relief and damage awards — as they see fit. Thus, industry and pro-energy lawmakers would no longer view EPA regulation of greenhouse gases as the lesser of two evils. They could then challenge EPA regulation without fear of ending up with something even worse.

The Obama brief plainly presents EPA regulation as a shield from the chaos of CO2 nuisance litigation run amok:

The court of appeals held that plaintiffs’ federal common-law actions for public nuisance had not been displaced by the CAA [Clean Air Act] because “EPA does not currently regulate carbon dioxide under the CAA,” and does not “regulate such emissions from stationary sources.” Those predicates for the court of appeals’ analysis are no longer true. In the 11 months since the court issued its decision, EPA has taken several affirmative steps to make carbon dioxide emissions “subject to regulation” under the CAA as of January 2, 2011. Thus, even assuming the court’s decision was correct when it was issued, it is now clear, in light of intervening developments, that any federal common-law cause of action against petitioners and TVA for their emissions has been displaced.

The brief continues:

As the court of appeals recognized, federal common law is “subject to the paramount authority of Congress,” which means that a “previously available federal common law action” will be “displaced” whenever a “scheme established by Congress addresses the problem.” Accordingly, federal common law is displaced when an administrative agency takes regulatory action, under the authority of a comprehensive statutory program, to address the particular issue raised in a putative common-law cause of action.

Of course, the foregoing analysis assumes that Congress intended the CAA to be a statutory scheme for regulating greenhouse gases — exactly what opponents of EPA’s shocking power grab deny. The point, however, is that the Obama administration is attempting to manage rather than eliminate the threat of litigation chaos. The price we must pay for such “protection” — not spelled out but clear enough from the terms of Team Obama’s argument — is support for (or at least acceptance of) EPA’s Court-awarded authority to Kyotoize the economy.

My unsolicited advice to freedom’s friends in Congress and industry is to fight both fronts of this war: (1) Insist that making climate policy is a prerogative of politically accountable elected officials and thus beyond the competence of both judges and EPA bureaucrats; and, (2) challenge EPA’s endangerment rule in light of the “absurdresults” to which it has led.

NAAQS: A Ticking Time Bomb

Industry types willing to accept EPA regulation as the lesser evil should consider what the U.S. business climate will be like once the agency gets around to establishing national ambient air quality standards (NAAQS) for greenhouse gases.

Some may think EPA would never go to such extremes. Then how come the Obama brief lists CAA Section 108 — the trigger for an NAAQS rulemaking — as one of the authorities available to EPA for regulating greenhouse gases? The brief also mentions Section 202 (motor vehicle standards), Section 165 (prevention of significant deterioration preconstruction permitting), Section 111 (new source performance standards), and Title V (operating permits) as applicable CAA authorities. No surprise there. EPA has either issued or is developing rules to regulate greenhouse gases under those provisions. However, sandwiched between the brief’s description of Section 202 and Section 111, we find this observation, which comes as a complete surprise:

Section 108 of the CAA also provides EPA with a mechanism for listing pollutants that “endanger public health or welfare” and meet certain other criteria. When an air pollutant is listed, the Act requires States to regulate emissions to prevent pollution from exceeding EPA standards.

If EPA would never issue NAAQS for greenhouse gases, then why mention Section 108 in a brief intended to prove that CAA regulation of greenhouse gases “displaces” federal common-law injury claims? Why not just discuss the authorities everybody knows EPA is currently using or plans to use?

Including NAAQS as a regulatory option in a brief to the Supreme Court is worrisome, especially given the aggressive push warmists are making on this front. The Center for Biological Diversity (CBD), among others, petitioned EPA more than a year ago to establish NAAQS for CO2 at 350 parts per million and for other greenhouse gases at pre-industrial concentrations. Even a global depression lasting several decades would not be enough to bring global CO2 concentrations down to 350 ppm. Yet, under the CAA, states must attain primary (health-based) NAAQS within five or at most 10 years.

Logically, EPA has already satisfied the substantive criteria for listing greenhouse gases as air pollutants under Section 108. NAAQS are pollution concentration standards specifying how many parts per million (or billion) of a pollutant are permissible in the ambient air. EPA’s Endangerment Rule (p. 66516) states that, “elevated concentration of greenhouse gases in the atmosphere may reasonably be anticipated to endanger public health and to endanger public welfare of current and future generations.” By “elevated concentration,” EPA clearly means elevated above pre-industrial levels. Inescapable implication: EPA has a duty under Section 108 to establish NAAQS for greenhouse gases set below current concentrations — just as CBD and its allies demand.

The only real protection for America’s economic future is for Congress to take back what activist judges and bureaucrats have purloined: the authority to decide how — and, more importantly, whether — greenhouse gases shall be regulated.

Very good article. Large cities pollute their living space, and the biggest
polluter is industry, waste management, and transport. Particularly if a city
is near the ocean, where atmospheric conditions can enhance the movement of
greenhouse gases. The problem is of course stemming from the fraudulent and manipulated data provided by the likes of Michael Mann, Al Gore, Hansen, the UEA, and many more including the UN IPCC. Who have been paid millions to prove AGW, not the other side, and I am a knowledge based skeptic. Climate change is not dictated by the amount of emissions a country or area emits. But rushing into the Carbon trading and clean energy investments, trillions is now invested not to improve the environment, but to allow emitters to keep emitting, and buy carbon credits.

Add to this the fact CO2 is not a pollutant nor a great percentage of Greenhouse Gases (4% and 3% is naturally produced) 95% is water vapor, and 1 %
is trace gases like methane, nitrous oxide, ozone. Our climates are controlled
by much more powerful entities, like solar activity, tidal movements, orbit,
and to a point natural disasters, such as volcanic and seismic activity, and sub atomic particles from outer space. Climate is what we expect? Weather is what we get – and weather kills us!

You and I and all living things plus most minerals are made of Carbon. We are a Carbon based planet. We are an ice planet naturally, and now temps are dropping, we can expect that in years to come we will be experiencing another
mini or glacial period. Now – don’t wish this on us. The Northern Hemisphere
will be more effected than the Southern Hemisphere.

I think most governments in the world have been conned by people who wish to
make money or have political influence on another countries economy and citizens welfare. Ask Al Gore the first Carbon Billionaire to reappraise his
“Inconvenient Truth’ then sue him for fraud.

Today, the solitary inventor, tinkering in his shop, has been overshadowed by task forces of scientists in laboratories and testing fields. In the same fashion, the free university, historically the fountainhead of free ideas and scientific discovery, has experienced a revolution in the conduct of research. Partly because of the huge costs involved, a government contract becomes virtually a substitute for intellectual curiosity. For every old blackboard there are now hundreds of new electronic computers.

The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present

* and is gravely to be regarded.

Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientifictechnological elite.”

The “problem of global warming” is in your mind. Global warming/cooling is a natural cycle of the planet. The Medieval Warm Period experienced temperatures higher than they have been during any of the last 20 years. Phil Jones, the IPCC climate guru, admitted to the BBC that there has been no “statistically significant climate warming during the last 15 years”.

Are they going to sue us for breathing? What about volcanoes? Are they going to tax Volcanoes? How about cows, horses, OMG ZOOS have huge stocks of CO2 producing animals. Everyone is going to have to wear a re-breather if this sort of legislation goes to it’s logical conclusion. That’s it. Eliminate all forms of animal life that produces most of the CO2 on this planet, and don’t forget to plug those foul gas emitting volcanoes and undersea vents.

Wow! If anyone still believes that Obama and his minions are not out to destroy America then they need serious psychological help.

Hopefully the next conservative led Congress and the next conservative POTUS will abolish the EPA. And since we cannot make illegal class-action law suits, I suggest we tax all law firms, and parties to CO2 suits at 99%. And loser pays. Any foundation or organization that participates in CO2 suits be reclassified and lose their 501(c)(3) status. Any group of organization that takes federal money cannot participate in CO2 law suits like the NRDC.

This will get Obama and his merry band of carbon credit traders back in business again. He and his lying Greenies, meaning dollar hungry dolts, are waiting for this to pass so they can reopen the carbon credit exchange in Chicago that has all but died. They all expected to make trillions on the backs of the American peole.

Given that we now know that “climate change” is a myth concocted by the radical left, how can this lawsuit possibly help America? What is it that is being done for the benefit of the people? How can this result in anything but higher energy prices for no good reason? When are we finally going to stop creating problems with government programs and regulations?

What seemed so radical only a few years ago should now be seriously considered. Given the waste of time and tax dollars on this and other lawsuits brought for no reason other than an extrememly bad law, isn’t it time to abolish the Environmental Protection Agency?

Eliminating the EPA is by far the best solution. It once served a purpose but is so thoroughly infested with with Eco Nazis in particular and Bolsheviks in general that reform is impossible. Best start over and on a much smaller scale.

Excellent piece. I hope other grasshoppers exercise patience and stay with the argument. The Obama administration seeking to perpetuate a “protection” situation is classically in character. Ms. Lewis seems to have nailed it.

One thing we all need to keep in mind is that unattainable goals for NAAQS — goals that can’t be met without rolling back a century or more of industrialization — aren’t intended as actual goals. They’re intended as the pretext for a perpetual system of fines. If the air ever reverted to its condition in 1900, the revenue from fining us (or extracting “fees” from us) would dry up. It’s all a rent-seeking scheme to control and profit from the use of resources. But in this case, you don’t get greater value for your dollar, as you do by purchasing gasoline or electricity as oppposed to not doing it. You just pay more to run in place — or slowly lose ground. It’s wholly artificial. It’s a scam.

These companies are playing far far to nice with the cultist filth…global warming cultists often get away with massive hypocrisy because it goes unchallenged.

The first thing these companies need to do is sue those state and eco-terrorist groups on the same grounds they are being sued. Then expand that lawsuit to include hollywood and al gore and friends…you watch how fast courts throw out every lawsuit when they’re a chance its not going to be freedom money. The amount of CO2 a state that CA produces on useless BS dwarfs anything these companies produce. It would be the fastest trimming of state budgets in history.

If we were to forgo the use of electricity and decide to light our homes with candles or oil lamps in the name of planetary salvation, we would produce more CO2 and black smoke than we do now, because a power plant producing enough electricity to lit 10 million light bulbs is far more efficient than the 100 million candles necessary to produce as much light.

In any case, if we were to succeed in depleting the atmosphere of CO2 by some miraculous chemical process, the vast quantities of CO2 dissolved in lakes and oceans would slowly diffuse back into the atmosphere. CO2 is not a poison. It is an essential feedstock for plant growth. Without atmospheric CO2, agriculture would become impossible, as plants require the carbon dioxide collected by their leaves in order to grow.

The rational solution is to abolish the EPA, before we have to pay a fee to exercise our spontaneous methane emission rights, as guaranteed by state-issued farting permits, to be worn on one’s person at all times, in case of arrest for some other violation. Only government can poison everything and create real problems under the pretense of solving imaginary ones, as Thomas Sowell explains brilliantly in his National Review Online column today.

Note also the similarity to the argument against SB1070. The argument is that only the federal government can prevent the chaos that would result from numerous parties trying to deal with a single problem.

Both cases are really arguments for strong central government, based on the claim that decentralized approaches are chaotic.

I have an idea! Let’s stop as much CO2 from getting into the atmosphere, that way most plant life on the erath will perish. When that happens, all the Vegans and vegetarians(the eco crackpots responsible) will starve to death. Those left will be the carnivores who can take off their CO2 scrubber masks, start putting CO2 back into the atmosphere and our problems will be solved. No more nutballs to have to listen to or deal with. The Democrat party will be about 1/10 of it’s original size. I see no downside to this. LOL

We’v e got volcanos going off left and right and what do you hear from these guys? I mean do they tell us how many tons of what is going where? Nope those volcanos must not have anything to do with their agenda er global warming

I hate the giant windmills. They are a blight on the entire western landscape. This CO2 crap is a push to build more of the damned useless things using taxpayers money and designed only for getting a few politically connected types a guarantee of an investment profit. In exchange, morons like T Boone Pickens will kiss the Democrats collectivist asses. You and I get fleeced and the Dems get to fill their campaign war chests. Any smug eastern elitists looking out their high rise windows at these CHINESE BUILT monstrosities? Of course not. Just us backwater westerners get to see this! Off with all of your heads!

Excepts: “The 12/6 announcement by the Supreme Court to hear an appeal in a global warming nuisance case is a classic example of a double-edged sword…. AGW believers hope the Court will ultimately accept the simple mantra that global warming science is settled, thus corrupt skeptic scientists must be ignored. Sadly, it takes a maddening amount of detail to tell how this group is interconnected in its efforts to manipulate us into believing such a simple concept. That’s the double-edge.

But an edge which could cut them to shreds is a simple question prompted by all that maddening detail: ‘You want us to ignore skeptic scientists based on a guilt-by-association accusation supported by an out-of-context phrase from an unseen coal industry PR campaign memo?!’”